|September 18, 2012|
Previously published on September 2012
With the recent furor over the Supreme Court’s decision regarding the Patient Protection and Affordable Care Act (ACA), many employers have lost sight of other provisions of the ACA which may offer protections to their employees.
Provisions of the ACA require all employers who are subject to the federal wage and hour law (the Fair Labor Standards Act) to provide “a place other than a bathroom that is shielded from view and free from intrusion from coworkers and the public” and to provide reasonable break times to be used by female employees to express milk during the first year of their child’s life.
In a case filed in the Northern District of Iowa, Salz v. Casey’s Marketing Company, the plaintiff requested a place to express breast milk under the provisions of the ACA. Her supervisor assured her that the store’s office was a secure and private place to do so. Three months later, the employee noticed that an operating video camera had been placed in the office. When she asked the store manager to disable the camera while she was expressing, the manager refused, telling her, instead, to cover the camera with a plastic bag. She filed the lawsuit alleging a violation of the privacy provision of the ACA as well as several other causes of action.
When the defendant moved to dismiss the lawsuit, the court noted that the enforcement of these particular provisions of the ACA can only be pursued by the Department of Labor (DOL) after the employee has filed a complaint with the DOL. Because the plaintiff had filed a lawsuit without ever filing with the DOL, the court dismissed the allegation that the employer had violated the ACA.
Even though the court dismissed the lawsuit on a procedural ground, it is a reminder of the rights vested in nursing mothers under the ACA:
- All employers covered by the FLSA must comply with the break time and “private place” provisions for nursing mothers. However, employers with fewer than 50 employees have the opportunity to prove “undue hardship” with respect to the break time provisions.
- All employees who work for the covered employer, regardless of the work site, are counted in determining whether this exception may apply.
- These provisions of the ACA cover only employees who are not salaried exempt.
- The DOL, in examining undue hardship, will look at the difficulty or expense of providing breaks with respect to the size, financial resources, nature, and structure of the employer’s business.
- Employers are not required to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where the employers already provide compensated breaks, an employee who uses that established break time to express milk must be compensated in the same way that other employees are compensated for break time.
- The employee must be completely relieved from duty while on such breaks or else the time must be compensated as work time.
The ACA is a federal law. It is not meant to supersede state laws which have greater protections. At least 24 states have laws related to breast feeding in the workplace. Clients should check their state laws when related issues arise.